Friday, January 27, 2012

ZBA Burns/Incinerates Biomass Permit...

**This post has been updated with pictures and for grammar. This post has also been corrected to accurately reflect the comments of one speaker with regard to Massachusetts municipal waste incinerator ban.**

(WMassP&I)

As early as five thirty, a half hour before the zoning board of appeals hearing was set to begin, opponents of a proposed Biomass facility on Page Boulevard were arriving at City Hall. Opponents from across the city and throughout the region poured into the hearing room that more than fifty years ago housed the second of the city's two legislative bodies. As the room filled, supporters of the project were limited to a few seats off to the side. Palmer Renewable Energy's imperious local attorney Frank Fitzgerald opted to stand.

Nobody knew what to expect from the board and between that and the tenor of hearing, many opponents could only guess how the board would rule. Some were mindful of the high hurdle they would need to clear to sustain their appeal. They would need not only a strong argument, but they would need to secure a unanimous vote from the board.

Before the ZBA were three matters. Two involved biomass. The other, the first one, involved an elderly woman who wanted to erect a temporary carport on her property. The ZBA approved it with no opposition.

The real battle lay in the other two petitions. Many had hoped that the biomass issue had died, at least on the city level, when the Springfield City Council revoked PRE's special permit. However, the situation turned against biomass opponents again when Building Commissioner Steven Desilets issued PRE a building permit on the reasoning that a special permit was unnecessary. That led to an appeal from local activist Michaelann Bewsee and two residents that live near the plant's proposed location, William and Toni Keefe. The Springfield City Council, in exercising their prerogative as the authors of the zoning ordinance and issuers of special permits, filed the second appeal.

Michaelann Bewsee
(Michaelann Land Blog)

Bewsee's appeal came first and most of the arguments on the merits were the same for both the council's and her appeals. However, there were issues of standing, that is were Bewsee and the Keefe's aggrieved parties to Desilets's decision? While PRE was expected to attack the council's standing as well, that argument would likely fly directly in the face of established case law.

As would become a consistent problem throughout the hearing, ZBA chair Brenda Doherty implored the crowd to limit discussion of public health and air quality to only how it relates to the hearing. The ZBA's jurisdiction was only zoning and could only consider the public health impacts to the extent they affected standing. Despite that admonition, both sides veered away at times.

As lead petitioner, Bewsee spoke first. She outlined the long, sordid history of the project, particularly its switch from burning construction waste to wood chips. She outlined the project's original plan to burn construction and demolition waste for which the company requested and received a special permit for a recycling center on a 7-2 vote in 2008. Since then the project changed to burning wood chips and the Springfield City Council completely transformed. Following that transformation, the council revoked the permit on the grounds that the project had substantially changed.

Bewsee argued that the building permit was unlawful because Palmer Renewable's air quality permit was being appealed by none other than Bewsee herself and other environmentalists. The city's ordinance and state regulations require that all air permits be obtained before a building permit is issued from the municipality.

Bewsee then explained how Desilets's decision was contrary to city zoning law. Although the Page Boulevard property is zoned Industrial A, which is a very permissive designation, PRE was not merely proposing to engage in "processing," one of the approved activities as of right. Rather the proposed process that the plant involved "incineration," which needs a special permit. She disputed the notion that the wood being used did not qualify as waste. Bewsee also defended her standing to appeal because the plant's emission's would affect her respiratory problems, but perhaps more critically, she defended the standing of the Keefes whose commute would be impacted by the trucks hauling waste wood in and ash out.

Pat Markey in 2007 with Karen Powell (WMassP&I)

Pat Markey, an attorney, former City Solicitor and former City Councilor who cast one of the two votes against the 2008 special permit, made the comment that would define the evening. He told the board that proponents of the plant would offer a bunch of "smoke and mirrors." He broke down the incineration requirement of the city zoning ordinance to its most basic component, "to burn to ash," and reminded the board that anything beyond that simply does not matter.

Other anti-biomass speakers drifted into air quality issues that Doherty tried to reign in. The board also heard from a real estate agent who represented the owners of the former Friendly's on Page Boulevard that worried about the impact on that property's marketability.

Desilets was represented by Lisa DeSousa, an assistance city solicitor who, as Markey predicted, began the first round of dissembling. She said that the plant would not engage in incineration of waste, refuse or offal, but would be burning fuel. That difference, if it existed at all and expounded upon throughout the hearing, would form the crux of the board's final decision. She did suggest, if not all that convincingly, that the air quality permit was actually in effect, as Bewsee and others had not requested a stay pending their administrative appeal of the air permit.

Fitzgerald, the lead local PRE attorney, only confidently assured the board that all i's were dotted and t's crossed. He, too meandered into more detail about the air quality permit than Doherty would have likely preferred, but handed most of the show off to Botson Attorney Thomas Mackie. Mackie had appeared before the council at the revocation hearing and brought his trademark condescension and attitude that defined much of his earlier remarks before the council. Absent, however, were the veiled threats of litigation he hurled at the council, as the appeals board members face considerably different political consequences than councilors. He did display at least a passing respect for Bewsee as the appellant, however.

Attorney Frank Fitzgerald, Center (WMassP&I)

Mackie, however, did continue the subterfuge. He backed DeSousa's analysis and then tried to draw in details of debatable relevance. He attacked Bewsee's petition by way of her not calling the plant an incinerator in her appeal of PRE's air permit before the Department of Environmental Protection. Further he suggested that because the city zoning statutes refers to DEP regulations that the ZBA is obligated to follow DEP rules about incinerators, which he added were banned by the state. Under that theory, the city's requirement that their be a permit for an incinerator cannot apply to PRE's proposal because were it an incinerator, then they would have needed to undergo further review by the DEP. Furthermore, he said the plant was not an incinerator, but a power plant. Under appellants theory as he understood it, he continued, wood stoves would be incinerators. Mackie went on to attack Bewsee and the Keefes' standing. He implied the council also lacked standing, but as their petition was separate (and continued) those comments were never explained. Experts for PRE claimed the traffic increase would be minimal, undercutting the Keefes' standing and that the air impact on Bewsee was too negligible to matter.

On rebuttal, Ward 8 Councilor John Lysak, whose district includes the proposed site, offered an anecdotal response to the traffic argument noting that his constituents frequently encounter considerable traffic at that intersection (Page Boulevard and Cadwell Drive). Markey bolstered that argument by pointing to a city sponsored study that found that the added truck traffic would not be negligible in the heavily industrial area, as PRE's experts claimed.

The Crowd in the Hearing Room (WMassP&I)

However, Markey humbly went for the throat of Mackie's argument noting that incineration was defined separately from the "reduction" of waste products in the zoning statute. However, he maintained that even if the two components were linked, Mackie's allusion to incinerators is irrelevant and deceiving. The zoning ordinace refers not to incinerators, which biomass proponents contended would have entailed further DEP regulation, but incineration. A process versus a specific object. Perhaps, as Markey explained, it was a power plant too, but ultimately it was one that functions via incineration. Given that, it did not matter what the DEP defined as fuel, another Mackie argument. Markey reminded the board the question before them was not one of a interpreting the DEP's statute. Rather their charge was to interpret the commonwealth's zoning statute and the city's ordinance that the state land use (zoning) statute authorized, which does not provide the guidance on fuel that Mackie said the board should follow.

Sylvia Broude of the Toxics Action Center, may have delivered the final blow when she added that the incinerator ban Mackie referred to was in reference to garbage incinerators that burn municipal waste, like things picked up from the curb, not those intending to burn any other waste including wood pellets. She further added that whether the waste wood that would feed the plant, however commodified as fuel, was still fundamentally a waste product. A final speaker added that the waste wood, a term said to be in PRE's documents, is used to avoid carbon accounting, but does not change its status as natural refuse.

Councilors conferring w/ each other before the hearing
(WMassP&I)

During a break, opponents of the biomass plant considered a strategy of continuing the Bewsee/Keefe to another day and allow the council to present to avoid any standing issues. Bewsee moved for a continuance, but Doherty questioned the request leading Bewsee to withdraw it, letting her appeal stand on its own.

The hearing closed and the matter was before the commissioners. Many wondered whether the board would rule that night, but it soon became clear that they would. For supporters of the appeal, many worried that an adverse ruling on Bewsee/Keefe petition could cripple the council's appeal, despite the latter's stronger standing. An adverse ruling before the board would create fresh legal challenges for Bewsee in addition to procedural challenges for city councilors.

There was a brief debate among ZBA commissioners what greenwood before the ruling. Henry Nowick seemed to suggest sympathy to granting the appeal, but was unsure what and where this "greenwood" was. Doherty suggested he recuse himself if he felt he needed that information to rule, a possibility as the board had an alternate that night. Commissioner Daniel Morrissey, however, articulated what would become the board's opinion. Morrissey, himself, an attorney, stated the obvious: in Springfield, the definition is incineration. He viewed PRE's proposal as incineration. Whether it was fuel, waste, greenwood or offal, the process being undertaken at the plant will be incineration. The zoning ordinance, he explained, demands that a special permit be obtained. The other commissioners agreed, including Doherty, who said that incineration is the proposed activity at the plant and that the building commissioner had improperly granted PRE a building permit without the necessary special permit. The motion to grant the appeal passed without objection. The formal acceptance of the vote was quickly drowned out by the roar of cheers from the opponents of the plant who still packed the hearing room.

While PRE's attorney and experts scurried away quickly, opponents were ebullient. Broude, of the Toxics Action Center, was "very pleased" to see the board call this project what it is, incineration. Bewsee, whose history of activism goes back many years said she was "surprised" as Markey had told her sometimes smoke and mirrors work. When asked, as a petitioner who may be dragged into court with the city when PRE appeals, to what level she would take this fight, she replied, "We'll go as far as we have to go!"

Sue Reid (clf.org)

The board did not explicitly mention Bewsee's standing decision, but Markey suggested that in making a ruling on the merits, the board had implicitly rejected questions of standing. "I'm delighted by their decision," Markey added. Sue Reid, Massachusetts Director of the Conservation Law Foundation called the ruling "terrific." Her group, which offered testimony at the special permit revocation hearing May and is involved in the air quality appeal before the DEP, vowed to continue to monitor the process.

Within twenty-four hours of the ruling, the Republican reported that PRE does intend to appeal. However in the same article, City Solicitor Ed Pikula, who had been criticized throughout the process for his legal opinions, suggested that the decision of the ZBA exhausted the administrative appeals and that the city would stand by that decision. This solved a potential problem regarding the City Council's ability to pay for appeals if it had lost before the ZBA or before a lower court. A suit in superior court will likely name the city's zoning board of appeals as the lead defendant.

Because the Bewsee petition was decided on the merits, with the council's standing in little doubt it is fair to say that the council's petition to overturn the permit would be likewise granted. The council continued its petition to reserve the right to make its appeal within ninety days while councilors considered their legal options. Allowing their right of appeal to lapse could be catastrophic if the Bewsee petition is turned back on issues of standing by a superior or an appellate court.

For now, however, PRE has no right to build anything on its property for this project. While it technically does have its air permit, it lacks any special or not-so special permits from the city. More legal battles are ahead, but those familiar with the law note that favorable ruling from the administrative body for the appellants makes PRE's case considerably tougher. They will need to prove to a court that the ZBA's decision was unreasonable in light of the evidence not whether it was the right decision.

Councilor Allen (Facebook)

Still opponents of the plant were ecstatic. A smile overtook the face of Ward 7 Councilor Tim Allen when asked for his reaction to the ruling. "I'm thrilled," he said shortly after phoning the decision into Councilor Lysak who had to leave before the board ruled. "I'm glad that all of the points of view were heard and that this is the decision," he continued. Asked about whether the new zoning ordinance that Allen had worked on over the last term could correct some of the ambiguities that PRE's attorney exploited, Allen was non-comittal. In general, he admitted, without referring to any passages that may or may not relate to biomass "the new zoning ordinance is much clearer" and he expected a vote on it this year.

Speaking about the board's decision, Allen who endured a rough start to this year on the council, waxed a little romantic and noted the groundswell of activism from residents and the support they gave to councilors opposing the plant. "This is a strong example of how democracies are supposed to work," he said.

2 comments:

Thanks for this blow by blow! Biomass opponents are pretty optimist that there may be a few battles left to fight, but we think we've won the war. Now on to making the zoning changes we need so this will never happen to us again.

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